Opinion
Docket No. 20158.
Decided March 12, 1975.
Appeal from Muskegon, Charles A. Larnard, J. Submitted Division 3 February 4, 1975, at Grand Rapids. (Docket No. 20158.) Decided March 12, 1975.
Complaint by the City of Norton Shores, Everett Miller, Ursula Miller, Paul Schuelke, Mary Schuelke, William Hagelgans, Herbert Hofmann and Mrs. James Maleski against Cornelius Carr and Rose Carr to prevent defendants from operating their business in violation of city ordinances and as a nuisance. Consent judgment entered. Defendants appeal. Reversed and remanded.
Parmenter, Forsythe Rude (by Steven G. Schember), for plaintiffs.
Alexis J. Rogoski and Thomas H. Andrews, Jr., for defendants.
Before: BRONSON, P.J., and M.F. CAVANAGH and D.F. WALSH, JJ.
Defendants-appellants own a parcel of land located in Norton Shores, on which they engage in various businesses, including a junkyard and a landscaping operation. On July 24, 1972, plaintiffs filed a complaint charging the defendants with violation of a city junkyard ordinance, a zoning ordinance, and an abandoned-vehicle ordinance, and with maintaining a public and private nuisance. Defendants, in turn, contend that the ordinances are unconstitutional as applied to them since their business operations constitute a nonconforming use in existence at the time the property was zoned.
At the date set for trial, December 20, 1973, the parties apparently negotiated in chambers an agreed settlement of the case. They then appeared in open court and, after a good deal of discussion, addition and deletion, placed the substance of an agreement on the record. The trial judge issued no opinion or judgment and simply adjourned the case at the conclusion of argument.
Subsequently, in a letter dated January 31, 1974, defendant's attorney informed the trial judge that as of January 30, 1974, defendants had revoked his authority to settle the case according to the terms previously discussed. The letter also requested the trial court to set the case for jury trial.
Plaintiffs moved for entry of the judgment on February 26, 1974, pursuant to the negotiated agreement. At the hearing on this motion, defendants appeared without counsel, protested the entry of judgment, requested a postponement, and stated that they had never agreed to the substance of plaintiff's proposed written judgment. They stated they had not as yet obtained a copy of the original transcript and would like the opportunity of obtaining one so that they could demonstrate to the court that they had not agreed to what was contained in the proffered order. Nevertheless, the trial court entered the judgment. Defendants' motion to vacate the judgment and grant a rehearing was denied on April 1, 1974.
This appeal involves only the propriety of the trial court's entry of judgment purportedly in the substance of the negotiated settlement of December 20, 1973. Because of the disposition of this appeal, additional issues raised by the parties are better reserved for trial.
Plaintiffs argue that the judgment was final on December 20, 1973, when stipulations were made concerning the negotiated settlement. It is true that, as a general rule, a judgment made orally by the trial court is complete when it is pronounced and does not depend upon entry by the clerk. Lewis v Wayne County Sheriff, 335 Mich. 640; 56 N.W.2d 211 (1953). The cases, however, refer to judicial acts. A consent judgment is primarily the act of the parties and not the court. Hibbard v Hibbard, 27 Mich. App. 112; 183 N.W.2d 358 (1970). Ortiz v Travelers Insurance Co, 2 Mich. App. 548; 140 N.W.2d 791 (1966).
Obviously, the parties must consent for the judgment to be effective. Hibbard v Hibbard, supra. This consent must consist of approval both as to form and substance of the decree. Union v Ewing, 372 Mich. 181, 186; 125 N.W.2d 311 (1963). In the present case, the most which could be concluded is that the defendants approved the substance of the decree, and a reading of the transcript raises some question as to the true mutuality of the original "agreement". As to the form of the judgment, the proposed order was submitted after defendants had withdrawn their consent.
Our conclusion is that the defendants properly withdrew their consent prior to the entry of judgment and that the plaintiffs and the trial court had full notice of this fact. Although this appears to be a case of original impression in this state, foreign jurisdictions have chosen the same path. See Lee v Rhodes, 227 N.C. 240; 41 S.E.2d 747 (1947), and Jacobs v Steinbrink, 242 App. Div. 197; 273 N.Y.S 498 (1934). See also 49 CJS, Judgments, § 175.
Plaintiffs' argument that defendants are estopped from revoking their consent because they enjoyed the benefits of the settlement during the month of January must also be rejected. Approval of a decree and acceptance of benefits thereunder does estop a party from appeal. Westgate v Adams, 293 Mich. 559; 292 N.W. 491 (1940). Both elements here, however, are missing. No decree was ever approved by defendants and defendants apparently did no more than continue their business as they operated it prior to the institution of suit.
Reversed and remanded for further proceedings not inconsistent with this opinion. No costs.